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Federal Complaint Case 2:15-cv-00058-wks Document 1 Filed 03/20/15 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE 2015 HAR 20 PH 2: ~6 DISTRICT OF VERMONT DEAN CORREN, * CASE NO. Plaintiff * * v. * * WILLIAM SORRELL, * Vermont Attorney General, * in his official capacity, * Defendant * COMPLAINT FOR VIOLATIONS OF THE FEDERAL CIVIL RIGHTS ACT PARTIES 1) Dean Corren is a resident of Burlington, Vermont. In 2014 he unsuccessfully ran for the office of Vermont Lieutenant Governor as the candidate of both the Progressive and Democratic parties. 2) Defendant William Sorrell is Vermont Attorney General, charged with administration and enforcement ofVermont's election campaign finance laws. JURISDICTION 3) This Court has federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). Supplemental jurisdiction over questions of state law is provided by 28 U.S.C. § 1367. FACTS 4) Pursuant to Vermont's public financing option 17 V.S.A. Chapter 61, subchapter 5, called the Vermont Campaign Finance Option, a candidate for the office of Lieutenant Governor who raises at least $17,500 from not fewer than 750 individuals who each make a contribution that does not exceed $50.00 will qualify to receive campaign finance Case 2:15-cv-00058-wks Document 1 Filed 03/20/15 Page 2 of 10 grants in amounts up to $32,500 for the primary election period, and $150,000 during the general election period, for a total of $200,000. 5) Mr. Corren qualified for and received public campaign financing under the Option for both the primary and general election periods. 6) During the course of the campaign, on or about October 27, 2014, Mr. Sorrell's office received a complaint of a violation of 17 V.S.A. § 2983(b)(l) which prohibits candidates which accept Vermont campaign finance grants from soliciting, accepting, or expending any contributions except qualifying contributions. 7) Specifically it was alleged that an email disseminated by the Vermont Democratic Party (VDP) on or about October 24, 2014 (attached) constituted an uncompensated in­ kind "related campaign expenditure" under 28 V.S.A. §2944 (a)-(b), and therefore was a prohibited campaign contribution under 17 V.S.A. § 2983(b)(1). 8) This was communicated by Mr. Sorrell's office to Mr. Corren's campaign on or about October 30, 2014. The $72,000 Penalty for the $255 Email. 9) Mr. Corren's campaign disputed and disputes that the email was a campaign contribution under the statute. 10) Mr. Corren alternatively offered that if the email was a contribution, he would pay for it and offered to put funds into escrow for that purpose. Mr. Sorrell contends that the value of the email itself was worth approximately $255. 11) This option was rejected by Mr. Sorrell. 12) Mr. Sorrell nevertheless has since threatened Mr. Corren with an enforcement action under 17 V.S.A. § 2903 if he did not, among other things, agree to pay the State of 2 Case 2:15-cv-00058-wks Document 1 Filed 03/20/15 Page 3 of 10 Vermont some $72,000: $52,000 under the provisions of 17 V.S.A. § 2903(b), plus $20,000 in civil fines, for violation of the cap set by §2983(b)(l), and for failing to report a contribution required by 17 V.S.A. § 2963(a)(l). 13) Mr. Sorrell has also threatened that other activities are under investigation and might also be the subject of prosecution for violation of§§ 2963(a)(l), 2983(b)(l) and 2944 if these payments were not made. COUNTI­ DECLARATORYJUDGMENTTHATTHEVDP EMAIL WAS NOT A "CONTRIBUTION" 14) The prior paragraphs are restated. 15) The October 24, 2014 VDP email included the following message: Come to a Rally! This weekend we are joining Senator Bernie Sanders, Governor Peter Shumlin, Dean, and local candidates for GOTV rallies across the state. Come to the one nearest you. (Bold in original). It listed rallies to be held in Bristol and Proctor on Saturday, October 25th, and in Hinesburg and St. Albans on Sunday, October 26th. 16) Mr. Corren attended the Bristol rally also attended by Senator Sanders, Governor Shumlin, Addison County State Senator Claire Ayer, and candidates for Vermont House of representatives Michael Fisher, David Sharpe, and Diane Lanpher. 17) Mr. Corren therefore asks the Court pursuant to its supplemental jurisdiction and 28 U.S.C. § 2201(a) to issue a declaratory judgment that the VDP email was a "cost paid for by a political party in connection with a campaign event at which three or more candidates are present" under 17 V.S.A. §§ 2901(4)(L) and/or "the use of a political party's ... computers and similar equipment" under 2901(4)(F), therefore not a "contribution," and not a violation of 17 V.S.A. § 2983(b)(l) or a reporting violation 3 Case 2:15-cv-00058-wks Document 1 Filed 03/20/15 Page 4 of 10 under 17 V.S.A. § 2963(a)(l). COUNT II­ UNCONSTITUTIONALITY OF 17 V.S.A. § 2983(b)(l). 18) The previous paragraphs are restated. 19) Mr. Corren alternatively and also seeks a judgment under the federal Civil Rights Act, 42 U.S.C. § 1942 declaring 17 V.S.A. § 2983(b)(l), enforcement for violation of which he has been threatened, to be unconstitutional. Disproportionate Restriction of the Right to Engage in Collective Activities and to Associate with Political Parties 20) The blanket prohibition at 17 V.S.A. § 2983(b)(l) makes it unlawful to thereafter (i) solicit, accept, or expend any campaign contributions or (ii) to make any expenditures not covered by the grant and the front-end qualifying private fundraising. 21) This prohibition includes "related campaign expenditures" by political parties, which is in turn defined as a "contribution" to a candidate under 17 V.S.A. § 2944. 22) The campaign finance act and the threat of prosecution under it unnecessarily, unfairly and disproportionately restricts, and impermissibly chills, the right of Option participants to associate with their political parties, to receive party assistance, to participate in party sponsored advertising, engage in coordinated activities, to engage in collective political activity, and it reduces the voice of political parties. 23) Starting in 2015, privately funded candidates for Lt. Governor can accept unlimited contributions from political parties under 17 V.S.A. §2941(a)(3)(B). 24) These restrictions violate the First Amendment because they are not supported by any compelling and/or significant state interest, and/or are not necessarily tailored, and violate equal protection under the 14th Amendment. 4 Case 2:15-cv-00058-wks Document 1 Filed 03/20/15 Page 5 of 10 Lack of Any Rescue, Trigger, or Waiver Provisions in §2983(b)(l). 25) The Vermont Campaign Finance Option is a "lump-sum grant" system which distributes a public financing grant at the beginning of the primary and then another at the beginning of the general election cycle. 26) The dynamic nature of the electoral system makes ex ante predictions about campaign expenditures for the purposes of setting competitive lump-sum grant levels almost impossible. 27) When the lump-sum grant is pegged too low, it puts Option participating candidates at a disadvantage because they lack the means to respond if their privately funded opponents spend more. 28) Although the Vermont Option not only allows, but requires, a certain level of contributions to qualify, once a candidate has qualified for and accepts the lump-sum Vermont campaign funds, Vermont's system lacks any corrective mechanisms adopted in other jurisdictions, such as "trigger," "rescue," or waiver provisions which adjust the campaign contribution and expenditure limits of § 2983(b )(1) to achieve a "Goldilocks solution" allowing an Option participant to have the additional funds needed when confronted by fundraising or expenditure by a non-participating opponent which exceeds his or her own. 29) This withholds the expenditure resources necessary to compete and creates a State-enforced second class status for such Option- participating candidates. 30) Mr. Corren's incumbent Republican opponent Mr. Phil Scott raised $295,246 compared to Mr. Corren's total resources allotment of$200,000. 31) This furthers no sufficiently important governmental interest, is not narrowly 5 Case 2:15-cv-00058-wks Document 1 Filed 03/20/15 Page 6 of 10 tailored and/or closely drawn, and unfairly and unnecessarily burdens the political opportunity of Option-participating candidates by limiting their ability to make competitive levels of expenditure. 32) It consequently also violates the unconstitutional condition doctrine. That doctrine provides that the state may not condition the grant of a benefit, even though a person otherwise has no "right" to it, on conditions that impermissibly infringe on his or her constitutionally protected interest, especially freedom of speech. 33) The blanket prohibition in turn defeats the recognized "sufficiently important governmental interests" behind public campaign financing -- which are to reduce the existence or appearance of quid quo pro corruption -- by chilling candidate participation in public financing. 34) Public financing can serve those governmental interests only if a meaningful number of candidates participate in the Option. 35) Candidates will choose to participate in the Option only if the funding provided and allowed enables them to run competitive races. 36) Without it, even fewer candidates will chose to participate in public financing, defeating these interests. COUNT III­ UNCONSTITUTIONALITY OF 17 V.S.A. § 2093(b). 3 7) The previous paragraphs are restated. 38) Mr. Corren also seeks a declaratory judgment under the federal Civil Rights Act 42 U.S.C. § 1983 that the purported "refund" required by 17 V.S.A.
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